A Victory for Religious Liberty

By E. Scott Lloyd

On April 28th the Supreme Court released its decision in the case of Salazar v. Buono, the case in which radical secularists challenged the display of a large white cross on federal land in the Mojave Desert. The cross, erected as a memorial to World War I veterans, was erected in 1934 by veterans who had not sought permission for the display in this desolate, rugged, and hot area of the Mojave Desert, about which Justice Alito quipped that "it is likely the cross was seen by more rattlesnakes than humans."

A retired federal employee, however, had sued in federal district court in California to have the cross removed, claiming that the presence of a Christian symbol on federal land offended him. The district Court granted the injunction, and the infamously left-leaning Ninth Circuit upheld that decision.

In response, Congress authorized a land transfer, whereby the land that hosted the cross was transferred into the hands of the local VFW post in exchange for some neighboring land.

Another lawsuit ensued, in which it was argued that Congress's actions were intended to violate the injunction, and that they violated the Establishment Clause of the First Amendment.

In order to understand the substantive question before the Court, consider whether the Constitution absolutely prohibits private citizens from setting in place a war memorial with a religious theme. If a group of Muslims, in order to honor those Americans who fought for Iraqi and Afghani freedom, had built a simple crescent moon in a desert region of a national park, would this have been perceived as an offense to the Constitution, i.e., an establishment of religion? Would it also be an offense if Congress had taken steps to prevent it from being dismantled by citizens so offended?

Justice Anthony Kennedy wrote for a plurality of the Court, which held in part that an injunction granted to enjoin conduct for one reason could not be used to invalidate a statute allegedly objectionable for an entirely different reason, especially inasmuch as courts are bound to consider less drastic relief in order to accord Congress, a coordinate branch of Government, the proper respect.

In a concurring opinion, Chief Justice Roberts noted that the plaintiff admitted its case was undermined entirely if the federal government had simply dismantled the cross before transferring the land to the VFW, even if the VFW then re-assembled the cross. The Chief Justice questioned whether the First Amendment required such a ritual.

Justice Alito concurred and emphasized that some would reasonably interpret the tearing down of the cross not only as disrespect for the soldiers it honored but as "an arresting symbol of a Government that is not neutral but hostile on matters of religion and is bent on eliminating from all public places and symbols any trace of our country's religious heritage."

Justices Scalia and Thomas also concurred, reasoning that Mr. Buono lacked standing. Since the cross was no longer on federal property, its presence could not offend the original plaintiff in a manner for which there was a remedy.

Justices Breyer, Stevens, Ginsburg, and Sotomayor dissented, with the latter three claiming that Congress' land transfer "favor[s]" the cross, and thus, religion. Breyer based his objection on the fact that the land transfer was used to defeat the effect of the original injunction.

Of course, the Establishment Clause reads that "Congress shall make no law respecting an establishment of religion[.]" Over the years, the Court has essentially changed the text so that the word "establishment" has been replaced by "endorsement". In any event, the dissenters strained to argue that simply because a cross was employed, religion was established or endorsed. Here, the government simply declined to interfere with an act intended to memorialize fallen comrades in arms.

With the privatization of the property involved, this case should have been a "slam dunk" no matter where on the political spectrum one stands. The narrow victory in this case is a stark reminder of just how hostile the left wing of the Court is to Christianity, even where the symbols of the faith are employed in a sectarian-neutral manner and to honor heroic contributions to civic life. And yet, it was a victory for common sense and for the Constitution.